The case involves S., a football coach for FC Onex's Junior A team, who was suspended by the Association Cantonale Genevoise de Football (ACGF) following an incident during a match in September 2009. The suspension was based on allegations that S. insulted and pushed an opposing player. S. and FC Onex appealed the decision to the ACGF's Central Committee, requesting a suspension of the sanction pending further investigation. However, the appeal was deemed inadmissible because the required fee of CHF 100 was not paid within the stipulated five-day period, as per ACGF statutes. The Regional Appeals Commission upheld this decision in January 2010, citing non-compliance with procedural requirements.
S. then appealed to the Court of Arbitration for Sport (CAS) in February 2010, seeking to overturn the decision and requesting a suspensive effect to allow him to continue coaching during the appeal process. He argued that denying the suspensive effect would render the appeal meaningless, especially if the suspension was later overturned. S. emphasized his clean record, fair-play reputation, and the lack of a proper hearing before his suspension. The ACGF opposed the request, asserting that S. failed to meet procedural requirements and should not benefit from an exception.
The CAS examined the request under Article R37 of its Code, which governs provisional measures. The tribunal noted that irreparable harm, a key criterion for granting such measures, was not demonstrated merely by the possibility of serving a suspension later overturned. The CAS emphasized that the absence of suspensive effect for suspensions is a standard consequence, not irreparable harm. The tribunal also considered procedural fairness but found no grounds to override the ACGF's decision based on non-payment of fees.
Ultimately, the CAS ruled in March 2010, denying the request for suspensive effect, as S. failed to show irreparable harm or procedural injustice warranting provisional relief. The decision underscored the importance of adhering to procedural rules and the limited scope for suspensive effect in disciplinary cases. The case highlights the balance between procedural compliance and substantive fairness in sports arbitration.
The jurisdiction of the CAS was established under Article 26 of the Swiss Concordat on Arbitration, which allows judicial authorities to order provisional measures. The case was treated as a request for provisional measures under Article R37 of the Code of Sports-Related Arbitration. The substitute President of the Appeals Arbitration Division was competent to issue the order, as the panel had not yet been constituted. The appeal, filed within the 10-day deadline, was admissible, but supplementary arguments and late submissions from the respondent were not considered.
Applicable law was determined by Article R58 of the Code, which prioritizes the parties' chosen law or, absent such choice, the law of the country where the sports federation is domiciled—here, Swiss law. The request for suspensive effect was evaluated based on three cumulative conditions derived from CAS jurisprudence: risk of irreparable harm, likelihood of success on the merits, and a balance of interests. The appellant failed to demonstrate irreparable harm, a key requirement, as their arguments relied on prior provisional suspension and the potential futility of serving a sanction if the appeal succeeded. These points were deemed insufficient to establish irreparable harm.
The substitute President concluded that the first condition for granting suspensive effect was unmet, making it unnecessary to assess the other two conditions. Consequently, the request for suspensive effect was rejected, with costs deferred to the final decision. The ruling emphasizes procedural economy and adherence to established legal principles in sports arbitration. The decision reaffirms the stringent criteria for suspensive effect and the importance of substantiating claims of irreparable harm in such proceedings.
In the final ruling, the substitute President of the Arbitration Appeal Chamber of the CAS dismissed the request for suspensive effect in the appeal filed by S. against the judgment rendered by the Regional Appeals Commission of the ACGF. The costs associated with the order were deferred to the main case, and the decision was declared final, concluding the matter without further examination of the appeal's merits or the balancing of interests. The case underscores the importance of procedural compliance and the high threshold for obtaining provisional measures in sports arbitration.